The Second Bybee Memo: A Smoking Gun

JURIST Contributing Editor Jordan Paust of the University of Houston Law Center says that far from providing real legal cover for CIA harsh interrogations, the newly disclosed second Bybee memo is a "smoking gun" providing further evidence of serial criminality and demonstrating beyond reasonable doubt why a memo writer is reasonably accused of complicity whether or not he knew that certain conduct would be "torture"....

The recently disclosed second August 1, 2002 Bybee memo provides further evidence of serial criminality that was authorized by an inner circle of Bush advisers and knowingly facilitated by memo writers in the Department of Justice. The second Bybee memo was apparently a "cover" memo to memorialize "previous oral advice" in July 2002 regarding use of "ten ["SERE"] techniques" for interrogation and to assuage evident concern that persons who authorize, facilitate, or use them might be prosecuted under the torture statute.

The advice was manifestly erroneous with respect to use of at least two interrogation tactics, waterboarding and the "box." The Bybee memo admitted and necessarily warned that waterboarding "produces the perception of 'suffocation and incipient panic'" and "constitutes a threat of imminent death." Furthermore, persons undergoing SERE training are aware of "precautions," the memo notes, but the waterboarded detainee in CIA control will not be aware of "precautions" while admittedly experiencing "incipient panic" and the "threat of imminent death."

Additionally, the Bybee memo admitted and necessarily warned that placing a human being in a "small confinement box" "without light" for "two hours" can cause pain and mental harm, but argued that it would not cause "substantial" physical pain, "substantial" interference with the individual's cognitive abilities, or "fundamentally" alter his personality. Along with the "box," there was to be an "introduction of an insect" that foreseeably can cause "trepidation" (i.e., dread or even terror) in a person who was admittedly expected "to have a fear of insects."

The memo was clearly designed to facilitate use of waterboarding and use of the "box" and a fear-enhancing insect during interrogation and expressly noted their unavoidable and probable effects. As such, the second Bybee memo is another smoking gun. It documents knowledge of the factual quality of international crime and provides clear evidence of criminal responsibility, not merely with respect to those who authorized and used these techniques, but also with respect to those who were aware of the fact that their memo would facilitate the proposed use of such forms of ill-treatment and what would be their actual and probable effects. As noted in a new article, The Absolute Prohibition of Torture, criminal complicity can occur when a memo writer is aware that his or her conduct can or will facilitate conduct of a direct perpetrator. The person who aids and abets need not know that the conduct of the direct perpetrator is criminal or whether it does in fact constitute "torture" or some other widely-known criminally proscribed conduct such as cruel or inhumane treatment. As international criminal tribunals have affirmed, it suffices that an accused was aware of the relevant factual circumstances and "need not have known that his or her act ... amounted to an 'inhumane act' either in the legal or moral sense."

The advice in the second Bybee memo was also facially erroneous, shoddy, and seriously unprofessional. It was facially erroneous because (1) physical pain that is "severe" within the definition of torture (addressing "severe physical or mental pain or suffering") manifestly need not occur over "a protracted period of time;" (2) physical "suffering" that is "severe" manifestly need not occur over "a protracted period of time;" and (3) mental harm that is "severe" within the definition of torture need not "disrupt profoundly" or "fundamentally" change a person's personality. As noted in my new article, advice that is manifestly in error can provide no cover.

The advice was shoddy and unprofessional in several respects. First, the advice was memorialized in connection with a request from CIA to use waterboarding, the "box" and a fear-enhancing insect, and other tactics for interrogation of a detainee held outside the United States. The CIA "asked ... whether certain proposed conduct would violate" the torture statute. It must have been clear to a professional, however, that the torture statute would not pose the only legal obstacle to use of the tactics the CIA had in mind and that far more than torture is criminally proscribed. For example, torture, cruel, and inhumane treatment are proscribed under two sets of federal statutes that allow prosecution of relevant customary and treaty-based laws of war, but there was no attention to such legislation or to any laws of war in the second Bybee memo. Torture, cruel, and inhumane treatment are also proscribed under the Convention Against Torture, and foreign states and international tribunals can prosecute such conduct, but there was no attention to any international agreement, customary international law in any relevant form, or the clear possibility of prosecution in foreign and international fora. There was merely a facially improper reading of one U.S. federal statute. Such advice, in view of clearly relevant law criminally proscribing cruel and inhumane treatment as well as torture and the CIA's request to use certain tactics abroad where foreign jurisdiction pertains, was at best shoddy and seriously unprofessional.

Second, instead of using computer-assisted research to identify, for example, whether waterboarding, the water cure, or related forms of induced suffocation are "torture" (much less cruel or inhumane treatment), the Bybee memo states that it was "drawing upon" a few cases decided under the Torture Victims Protection Act. Several easily discoverable federal and state court cases documented in my new article make clear that waterboarding is a form of "torture." Moreover, easily discoverable U.S. Country Reports on Human Rights Practices of various countries published by the U.S. Department of State and available on-line prior to the second Bybee memo and for years thereafter make clear that waterboarding is known by the Executive to be a form of "torture." Additionally, federal cases addressing cruel treatment in violation of the Eighth Amendment clearly demonstrate that use of waterboarding would also constitute cruel treatment. Discoverable cases and Executive Country Reports on Human Rights also demonstrate that a "threat of imminent death" constitutes torture.

Since the second Bybee memo only addressed possible cover with respect to one federal statute that addresses torture, it was clearly in no way a shield with respect to possible criminal liability under two forms of legislation allowing prosecution of war crimes, which include not merely torture but also cruel or inhumane treatment. Since relevant federal and state court cases and Executive Country Reports were easily discoverable by a lawyer (and the Bybee memo was a lawyer to lawyer memo!), I assume that the memo can in no way provide cover to a lawyer in the Bush Administration. Additionally, the Bybee memo was clearly in no way a potential shield with respect to violations of various treaty-based and customary international law prosecutable in foreign courts that can exercise universal jurisdiction over international crime or in the International Criminal Court.

Far from providing real cover, the newly disclosed smoking gun provides further evidence of serial criminality and demonstrates beyond reasonable doubt why a memo writer is reasonably accused of complicity whether or not he knew that certain conduct would be "torture."

Jordan J. Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston, a former U.S. Army JAG officer and member of the faculty of the Judge Advocate General's School. His book, Beyond the Law: The Bush Administration's Unlawful Responses in the "War" on Terror, was published by Cambridge University Press.


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